Hamilton v. Drogo , 241 N.Y. 401 ( 1926 )

Andrews, J.

By her will the dowager Duchess of Manchester bequeathed to trustees (now represented by the respondent) over one million dollars in trust, during the life of her son, to apply the annual income “ for the maintenance and support or otherwise, for the benefit of all or any one or more exclusively of the other or others of him my said son his wife and children or other issue as my * * * trustees in their sole and uncontrolled discretion without being liable for the exercise of such discretion think fit.” There was no attempt to provide for any accumulation of this income. Therefore, as the son in question, the present duke, has both a living wife and living children it became the duty of the trustee, annually or oftener, to exercise the discretion so confided to it, and to distribute the income among some or all of the persons mentioned as possible beneficiaries. Precisely how or when this discretion should be exercised is not material, but having been exercised those or the one to share in the income then to be distributed were or was entitled to receive the allotment made to them or him.

The appellant obtained a judgment in the Supreme Court against the Duke of Manchester. An execution was issued and returned unsatisfied. Thereupon the judgment creditor applied to a justice at Special Term for an order that an execution issue against the income from the trust funds of the defendant in the possession of the respondent as trustee to the amount of ten per cent thereof pursuant to Civil Practice Act, section 684. This section provides that after the entry of judgment and the return of an execution unsatisfied “ where any * * * income from trust funds * * * are due and owing to the judgment debtor or shall thereafter become due and owing to him to the amount of twelve dollars or more per week ” upon application of the creditor the justice must grant “ an order directing that an execution issue against the * * * income from the trust funds * * * of said judgment debtor, and on presentation of such execution * * * to the person or persons * * * from whom such * * * income from trust funds * * * are due and owing or may thereafter become due and owing to the judgment debtor, said execution shall become a lien and a continuing levy upon the * * * income from trust funds * * * ■ due or to become due to said judgment debtor ” for a certain percentage thereof. There is no requirement that the income be due at the time the order is made and the execution served. It is enough either that it will become due in the future from the trustee to the cestui que trust, or that it may become so due. If ever the day of payment arrives the lien of the execution attaches. The intention of the Legislature was to extend the scope and effect of an execution as it had theretofore existed.

In the present case no income may ever become due to the judgment debtor. We may not interfere with the discretion which the testatrix has vested in the trustee any more than her son may do so. Its judgment is final. But at least annually this judgment must be exercised. And if it is exercised in favor of the duke then there is due him the whole or such part of the income as the trustee may allot to him. After such allotment he may compel its payment. At least for some appreciable time, however brief, the award must precede the delivery of the income'he is to receive and during that time the lien of the execution attaches.

The orders appealed from should be reversed, with costs in all courts. An order should be granted directing the issuance of an execution in the form prescribed by Civil Practice Act, section 684. with ten dollars costs; We. consume .me question certified to mean: May the income of the trust fund held by the respondent, after the. whole or any part-thereof exceeding twelve dollars per week has been allotted to the Duke of Manchester, be reached on execution; and as so construed we answer it in the affirmative.

Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Lehman, JJ., concur.

Orders reversed, etc.